Deconstructing Sherman on PMD

The six powers and Iran are in Vienna this week to move forward the process of concluding a comprehensive agreement on the Iranian nuclear conundrum. At the outset of talks on February 17, the U.S. Department of State provided some public clarification about what the six have in mind for the Joint Commission in contributing to that result.

The explanation was welcome, but it also left open how Iran, the powers, and the International Atomic Energy Agency in coming months will ultimately put to rest allegations concerning what the IAEA has been calling the possible military dimensions (PMD) of the Iranian nuclear program.

To recall: The Joint Plan of Action (JPOA) that Iran and the powers agreed to last November 24 said this:

A Joint Commission of E3/EU+3 and Iran will be established to monitor the implementation of the near-term measures [under the JPOA] and address issues that may arise, with the IAEA responsible for verification of nuclear-related measures. The Joint Commission will work with the IAEA to facilitate resolution of past and present issues of concern.

What, exactly, will the Joint Commission do? Beginning on November 24, I have asked that question, because until now the “resolution of past and present issues of concern” has been the responsibility of Iran and the IAEA–not the powers.

The JPOA provided no self-evident answer to this question, and officials from negotiating states will tell you that the language in the JPOA assigning the Joint Commission responsibility for “resolution of past and present issues of concern” was ill-chosen and confusing. Especially because during the negotiation of the JPOA different parties had expressed very different views about the future of the PMD issue, indeed about the significance of resolving it, in December and January I continued to pursue this.

In the public space, meanwhile, lack of clarity prevailed, abetted by accounts distilled from supremely contradictory Iranian and Western media reports asserting, for example, that according to Deputy Iran Foreign Minister Seyed Abbas Araqchi, the Joint Commission would be “an influential body that will have authority to decide disputes,” while “U.S. officials described it as a discussion forum.”

The confidential “non-paper” that Iran and the powers negotiated prior to entry-into-force of the JPOA on January 20, to flesh out details of how the JPOA would be implemented, does not provide further details on what role the Joint Commission will have.

That’s the essential background to a press briefing given in Vienna on February 17 by a person described by the State Department as a “Senior Administration Official.” I’m in Berlin, not Vienna, but I’m assuming as usual it was U.S. Undersecretary of State Wendy Sherman doing the talking (she had briefed the U.S. Senate on February 4). According to the State Department’s posted transcript, at the briefing Jonathan Tirone at Bloomberg asked the question I and Vertic director Andreas Persbo had put forth last month about the Joint Commission, and specifically concerning its role in explaining PMD.

This was the answer:

The joint commission is not set up to clear away PMD. That is, in the first instance, the IAEA’s job. And they’re undertaking that. And in fact, the more that Iran can do to meet their obligations with the IAEA, the better for the nuclear negotiating process around a comprehensive agreement. So the two partner with each other, but they are not the same. The JPOA says that we will be of assistance where we can in resolving past and present issues, which reflects possible military dimensions of Iran’s nuclear program. But we want to do that in service to the IAEA, and we don’t want to do the job that belongs to the IAEA.

The joint commission was set up as a mechanism, when necessary, if there are compliance issues with the JPOA or questions that need to get resolved. So that’s what the joint commission is for. So if Iran was not fulfilling a commitment they made or we weren’t fulfilling a commitment we had made, there would be a place to discuss those things, even while we are negotiating the comprehensive agreement, so that any compliance issues wouldn’t come to the comprehensive negotiation, but would have another mechanism for facilitation. And it was anticipated that would happen at the expert level, and then come up to the political directors and up to foreign ministers if needed.

So far, there hasn’t been need or a purpose for the joint commission to meet. There needs to be content and substance for such a meeting. The IAEA is preparing monthly reports to let us know how things are going…

We can conclude from this answer that, in principle, the powers fully accept the view that the IAEA is supposed to handle with Iran the resolution of the PMD file, and further–as both Andreas and I had outlined as a possibility–that, if a problem in the future were to arise because Iran did not satisfy the IAEA, the Joint Commission would provide a forum to try to resolve it initially.

The answer is also consistent with secure information that the Joint Commission was originally intended to be set up as a forum to address concerns by Iran that sanctions-lifting happens as it should. That would explain why, as the answer says, there have been no meetings of the Joint Commission so far.

But what happens if Iran balks and the IAEA after discussion with the powers and Iran at the expert level fails to resolve significant PMD issues? What the State Department said would be consistent with our suggestion from January that ultimately a political decision would made whether an unresolved issue might, in fact, be declared sufficiently addressed. That decision would not happen in the trenches of the IAEA Department of Safeguards but at the top and only after high-level consultations including, presumably, IAEA Director General Yukiya Amano himself–although the State Department did not mention the IAEA in this regard: …Any compliance issues would [first be dealt with] at the expert level, and then come up to the political directors and up to foreign ministers if needed.

There you have it.

But is my suggestion that critical PMD matters might not be solved by Iran’s simply answering the IAEA’s questions just mean-spirited grist to the mill of those in Washington and elsewhere who haven’t joined the bandwagon on the Iran deal? Hardly.

On February 3, Iran’s Foreign Minister, Javad Zarif, visited the German Council of Foreign Relations in Berlin. Zarif explained to us that Iran has no aim or interest in having nuclear weapons. In fact, he said that the credibility of Iran’s regime was founded upon Iran not having such an ambition or interest. That’s the crux. If the credibility of Iran’s regime rests on its disavowal of nuclear arms, then any admission by Iran to the IAEA that the Islamic Republic of Iran has been engaged in nuclear weapons-related research or experiments–which prima facie would have to be reported to the Board of Governors–would severely damage the regime’s reputation. Shia theology might imply that nuclear weapons are sinful, but the IAEA’s dossier poses a potential major credibility problem. For Iran at any point to admit that it worked on nuclear weapons would be an order of magnitude more significant than Iran admitting, as it did in 2003, to having failed to declare to the IAEA a flurry of nuclear activities which could be justified by Iran’s peaceful nuclear program.

Beginning last November, the IAEA has joined the powers in a strategy of moving forward in “resolution of past and present issues of concern” by picking low-hanging fruit first. That’s spelled out in the Framework for Cooperation that the IAEA and Iran signed in Tehran. The two parties started building confidence by arranging visits to sites that probably don’t raise any show-stopper issues. They’ve now set forth a second set of seven issues they want to resolve. One of these–allegations that Iran has worked on developing detonators for nuclear explosives–was pulled out of the IAEA’s PMD dossier with the deliberate intention of getting the resolution on PMD matters moving.

At the Munich Security Conference on February 2, during a somewhat misinformed interchange with a German newspaper editor, Amano seemed to imply that the IAEA was keen to probe further Iran’s previous experiments with polonium that might have been related to PMD, since Po-210 can be used for directed neutron initiation. There are in fact nuclear detonator-related issues to resolve in the IAEA’s PMD file, but unless there is new and undisclosed information, polonium can hardly be the most important of these. For several years, Iran’s polonium experiments have not been on the IAEA’s front burner.

A few commentators therefore have opined this month that Amano was amiss in mentioning the agency’s interest in polonium. But in fact after Amano took the bait in Munich, the mini-media frenzy which followed advanced a possible civilian explanation for Iran’s electronic bridgewire experiments–development of detonation technology for Iran’s oil and gas industry–which Iran may well put forth before Amano reports next to the Board of Governors. If Iran explains this work to the IAEA on these grounds, and if Amano accepts that explanation, Iran and the IAEA will then move on to the next PMD issue.

Addressing the detonation issue will bring Amano and Iran to Parchin–a location where member-state information suggests Iran has carried out suspicious neutron-generation experiments. Some important member states have long considered the IAEA’s prioritizing of getting renewed access to Parchin to be counterproductive, especially since Iran has meanwhile scrubbed that site clean. Following discussions with the U.S. and other member states last fall leading up to the November 11 agreement with Iran, and in line with the coordinated low-hanging-fruit strategy, Amano has accommodated the powers and walked back the IAEA’s approach to getting information about this site. If Iran’s answers to the IAEA’s questions about what happened at that site are in the view of the IAEA not sufficient, then, as the State Department implied this week, the problem would be aired at the “expert level” first and if not resolved there, Iran and the powers would count on “political directors and foreign ministers if needed” to try to finesse it.

36 Responses to “Deconstructing Sherman on PMD”

Mark, I totally agree that the ebw issue was selected for the first PMD because it can be finessed. Here’s what I said:

Focusing on ebw detonators as a first step in PMD questions is wise. The inspectors can gauge Iran’s candor while issuing a report that can be diplomatically shaded away from a clearcut finding of nuclear weapons application.

Rene | February 19, 2014

Thank you very much for this informative piece! Two points come to my mind:

1) Is it not possible for Iran to retain credibility and at the same time admit that some weapons-related research took place there? One way to do so would be to blame a relatively low-ranking person or organization as having acted independently, without approval from the top. In this scenario, Iran can say that the Leader’s public announcement of his fatwa was meant to halt this work and also to deter any such activities in the future.

2) The ban on nuclear weapons is indicative of Khamenei’s view, not of Shiism in general. In Shi’ism, any competent jurist (“Ayatollah”) is entitled to have his/her own independent juristic views on any given issue. Of course, when a high-ranking cleric like Khamenei declares nukes to be forbidden, it is going to affect other jurists’ views, and more importantly it is presumably going to constrain the behavior of Iran’s government.

The best public mention of a fatwa appears to be one sentence in a diplomatic statement at an IAEA meeting in Vienna, August 10, 2005: “The Leader of the Islamic Republic of Iran, Ayatollah Ali Khamenei has issued the fatwa that the production, stockpiling, and use of nuclear weapons are forbidden under Islam and that the Islamic Republic of Iran shall never acquire these weapons.” There is no indication of when or where Khamenei issued this fatwa (presumably before August 10, 2005).

If one chooses to split hairs, this one sentence does not forbid research and development on a nuclear weapons capability, so long as no nuclear weapons are actually built. Also, if the research took place in 2003 before the fatwa was issued, it may not have violated even the spirit of such fatwa (except retroactively). Hence, I am puzzled as to why Iran attempts a cover-up of alleged PMD research, rather than admit past errors and undertake efforts to restore its credibility.

Cyrus | February 20, 2014

Lots of countries engage in “weapons-related research” and no one expects them to publicly declare it.

The fatwa is a redherring. Iran’s legal obligations are spelled out by the NPT and thus far Iran is in full compliance with those obligations; whatever the fatwa says is really over and above Iran’s legal obligations; a step extra by Iran. As such it probably has the same binding force as the US Negative Security Assurance.

But lets not forget that the Iranians for similar religious/moral reasons suffered 80,000 chemical weapons casualties. Would the US or Iran’s other critics have done the same? (never mind the fact that they were arming Saddam with WMDs at the time)

The alleged fatwa may well be a red herring, particularly if it is a public-relations gimmick, rather than a genuine religious conviction. The fact that no official text is publicly available suggests gimmick, not conviction.

The one sentence I quoted is at best only a summary of an alleged fatwa, not the fatwa itself. The summary does not suggest any obligation that goes beyond what the NPT already requires of non-nuclear weapons states, most of whom have complied with their legal obligations without religious proclamations.

Cyrus | February 20, 2014

The Polonium issue was deemed resolved by the IAEA in Iran’s favor, along with all the other claims with respect to Iran’s past activities, with the only exception of the “Alleged Studies”. I am always amused how the Modalities Agreement results seem to go unmentioned.

More to the point, this analysis simply assumes the PMD/”Alleged Studies” claims were justifiable rather pretextual, just as “WMDs in Iraq” had been a manufactured pretext for an entirely different policy of justifying imposed regime change there.

It should be made clear that prior to Amano, while Elbaradei was in charge, the “Possible Military Dimensions” claims were in fact called the “Alleged Studies” for a very good reason that has not changed since then: first, they were studies and as such were in no way “illegal,” and secondly they have always been only “alleged” and never proven in the least (indeed the elements of the claims that did become public were debunked, see the “AP Graph” or the nuclear detonator claims promoted by the Israelis through Oliver Kamm and mentioned by Elbaradei in his book, for example.)

So really, the only real question about the role of the PMD/Alleged Studies in these latest talks is whether the US will continue to use them as a pretext to kill off — yet again, as Obama pulled the rug out from under the Brazilians and Turks after Iran said yes to a deal — a potential resolution to this standoff and maintain this state of Manufactured Crisis, as Gareth Porter calls it in his book.

Oh and the idea that iran has “scrubbed Parchin clean” is just silly too considering everything actual weapons inspector Kelley has written about it. The main question about parchin, aside from the question about ALL of the allegations (“What actual proof is there?”) is, if Iran was hiding activities from 2003 there, why did it allow effectively unrestricted access to IAEA inspectors twice in 2005?

yousaf | February 20, 2014

I agree with Cyrus that the proper name for the file is “Alleged Studies” — the “Possible Military Dimensions” file could also be known as “Possible Non-Military Dimensions” file, since it is all possibilities.

Anyway, the Alleged Studies/PMD file is (largely) outside both the mandate and the expertise of the IAEA to examine:

The IAEA is not a *weapons* _investigation_ Agency: it is a nuclear materials inspections agency — it simply lacks the technical skills to do nuclear weapons related investigations.

This is not an insult to the IAEA: it is a statement of fact.

If the UN, in consultation with member states, expands the IAEA’s mandate to include not just inspections but also investigations in signatory nations, then the IAEA budget and personnel should be correspondingly increased.

Currently, there are only two staff members at the IAEA with backgrounds in nuclear weapons.

This may be sufficient to fulfill the Agency’s traditional inspections role, but is not enough to reliably carry out thorough nuclear-weapons investigations worldwide, as the Agency seems increasingly called upon to do.

If any of the PMD file can be shown to be authentic and if Iran can be shown the evidence it is being charged with, and if the IAEA has the mandate and technical skills to investigate it then it may bear further examination.

To date, it is random (not nuclear-material) stuff that has not stood up to technical scrutiny anyway, is outside the IAEA mandate and skill-set, and Iran has not been confronted with all of the evidence.

Ferenc and I looked into some of the stuff that is evidently associated with these alleged bomb codes and such (according to the Associated Press):

“What about the three indications that the arms project may have been reactivated?

Two of the three are attributed only to two member states, so the sourcing is impossible to evaluate. In addition, their validity is called into question by the agency’s handling of the third piece of evidence.

That evidence, according to the IAEA, tells us Iran embarked on a four-year program, starting around 2006, to validate the design of a device to produce a burst of neutrons that could initiate a fission chain reaction. Though I cannot say for sure what source the agency is relying on, I can say for certain that this project was earlier at the center of what appeared to be a misinformation campaign.

In 2009, the IAEA received a two-page document, purporting to come from Iran, describing this same alleged work. Mohamed ElBaradei, who was then the agency’s director general, rejected the information because there was no chain of custody for the paper, no clear source, document markings, date of issue or anything else that could establish its authenticity. What’s more, the document contained style errors, suggesting the author was not a native Farsi speaker. It appeared to have been typed using an Arabic, rather than a Farsi, word-processing program. When ElBaradei put the document in the trash heap, the U.K.’s Times newspaper published it.

This episode had suspicious similarities to a previous case that proved definitively to be a hoax. In 1995, the IAEA received several documents from the Sunday Times, a sister paper to the Times, purporting to show that Iraq had resumed its nuclear-weapons program in spite of all evidence to the contrary. The IAEA quickly determined that the documents were elaborate forgeries. ”

====================

So, some of the alleged studies stuff are likely forgeries — and the others are not shown to Iran, so it is ‘secret evidence’ that hardly anyone could be expected to respond to.

A still more serious charge is that Israel has engaged in the forgery and fabrication of intelligence.

Since early 2008 the case against Iran has rested mainly on material stored on a laptop. The material came into US hands in 2004, and was passed to the IAEA in 2005. For two and a half years IAEA officials regarded the material as dubious and made no use of it. It was only in 2008 that they started to press Iran to answer for it. …

….despite the IAEA reporting in early 2008 that Iran had resolved all the concerns that had arisen out of IAEA investigations in the preceding years.

In 2008 Israel passed to the IAEA intelligence suggesting that, years earlier, Iran had conducted nuclear weapon detonation tests at its Parchin military site. Then in 2009 Israel supplied “evidence” that Iran had resumed weapons-related research post-2003.

….Those sanctions have hurt Iranians and have damaged European and Asian economies.

The supposed refusal to cooperate has also served to justify maintaining UN demands that were first made of Iran before the 2007 NIE, when it seemed reasonable to consider Iran’s nuclear program a threat to peace, but which became inappropriate after the 2007 NIE and once the IAEA had reported the resolution of all its pre-2008 concerns.”

…..All talk of an “Iranian nuclear threat” is therefore premature. Consequently, the draconian measures implemented by the US and its allies to avert that threat are unreasonable and unwarranted.

==============

Again, that is the former UK amb to the IAEA who is intimately aware of much of the alleged evidence as he was in Vienna on station when the relevant discussions were taking place.

Can anyone point to any authenticated evidence that has not shown to be a non-issue in the Alleged Studies file?
It seems to be made up of random (not nuclear-material) issues that have not stood up to technical scrutiny anyway, are outside the IAEA mandate and skill-set, and Iran has not even been confronted with all of the evidence.

Dr Jim Walsh, a research associate at MIT, has an excellent suggestion about what to do with Iran’s “PMD” file –

“If the nuclear activities were in the past, I don’t care. It’s dead, and it’s regretful, but let’s do a deal with Iran that moves forward.”

I am more than happy to discuss any of this further.

yousaf | February 20, 2014

And re:

“But what happens if Iran balks and the the IAEA after discussion with the powers and Iran at the expert level fails to resolve significant PMD issues? ”

I believe Iran has never balked — it has said that the portion of the PMD file it was actually shown was forgeries.

That is an answer.

That may well be “coming clean” if in fact some of PMD file is forged.

How is a country supposed to respond to something that may well be forged and other things it is not allowed to see?

Iran may as well ask the IAEA:

“When will Amano come clean about beating his wife?”

[Some adversaries of Amano might have secret evidence on that -- too bad he cannot be allowed to see it]

You cannot presume something to be true when you don’t know whether it is true.

All the public evidence that has come out re. PMD is that it is (poorly) forged or trumped up or dual-use stuff.

Cyrus | February 20, 2014

Actually, what’s really amazing and has hitherto gone unmentioned by the Arms Control Experts is the fact that Amano, in a report issued about Iran’s nuclear program, claimed in a footnote that the IAEA Board had “endorsed” the view that the IAEA’s inspection authority extended to verifying both the completeness and correctness of declarations, when as Dan Joyner found out that far from endorsing any such thing several Board members specifically rejected this. And yet, no one bothered to follow up on such a blatant and egregious action by an international civil authority.

anon | February 21, 2014

Dan Joyner is wrong.

In March 1995 the Board decided by consensus that implementation of comprehensive safeguards agreements should seek to verify the correctness and completeness of the state’s declarations.

The context of the relevant IAEA BoG discussion is to be reminded. In 1995 the IAEA DG exposed the measures envisioned under the ‘93+2’ programme for updating the safeguards system (which led to the adoption of the Model Additional Protocol), and invited the BoG to confirm, inter alia, that:

The purpose of comprehensive safeguards agreements is the continuing verification of the correctness and completeness of States’ declarations of nuclear material in order to provide maximum assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities ‘ (in ‘Strengthening the Effectiveness and Improving the Efficiency of the Safeguards System’, Report by the Director General to the Board of Governors (GOV/2784), 21 February 1995, para. 110).

At the March 1995 session of the BoG, such ‘invitation’ was largely debated. The United States, Australia and Japan, inter alia, endorsed the specific proposal contained in para. 110 of GOV/2784 (quoted above). But the proposal also met with significant opposition from several members of the Board. For instance, the governor from Cuba, stated that

[t]he aim of comprehensive safeguards agreements was to detect swiftly any diversion to non-peaceful uses of significant quantities of nuclear material, and the means of doing so was by verifying the nuclear material declarations of States. Therefore, the Board could not confirm what was recommended in paragraph 110. A of the document within the current legal framework.

Similar reservations were formulated among others by Mexico, India, Pakistan, China, Algeria, Turkey, the Russian Federation.

The most elaborated criticism of the DG’s invitation came from the governor from Brazil, Ms. Machado Quintella, whose statement is worth being quoted extensively:

regretfully her delegation had some difficulty in accepting the present wording of paragraph 110, although it believed that there would be scope for consensus after some adjustments, as no one was likely to deny the desirability of increasing the level of assurance provided by the safeguards system. All were committed to strengthening the system; the question on which views differed was how to achieve that common goal.

100. What the Board was being asked to approve in subparagraph 110.A was not a confirmatory interpretation of document INFCIRC/153, but rather a new concept regarding the purpose of comprehensive safeguards agreements – one that would require the modification of existing agreements or their amplification by additional legal instruments.

101. As things stood at present, the purpose of existing comprehensive safeguards agreements was to verify that there was no diversion of nuclear material to the manufacture of nuclear weapons or of any other explosive device. Confirming what was stated in subparagraph 110. A, that the purpose of such agreements was the continuing verification of the correctness and completeness of States’ declarations of nuclear material, would thus represent a substantial departure, with no legal basis, from the original purpose as defined in paragraph 2 of document INFCIRC/153 and in Article III(l) of the NPT.

102. The assertion made in paragraph 5 of document GOV/2784 regarding the intentions of the drafters of document INFCIRC/153 was entirely uncorroborated by the records of the Board’s Safeguards Committee (1970), which she had studied at length. In approving the concept put forward in document GOV/2784 regarding the purpose of comprehensive safeguards agreements, the Board would therefore not be confirming previous understandings, but introducing new ideas which would require amendments or protocols to existing agreements in order that the envisaged new safeguards measures might be applied. Such measures could, of course, be introduced on the basis of bilateral arrangements between the Agency and each Member State concerned, but there was as yet no proper legal basis for changing the Agency’s safeguards system from one aimed at the verification of non-diversion to one aimed at verification of the non-existence of undeclared activities.

103. Verification of the absence of undeclared nuclear materials or activities required actions that had not been considered by the drafters of document INFCIRC/153 […].

109. With regard to paragraphs 2, 3 and 4, where there were references to the continuous development of safeguards, she believed that technological developments in the safeguards field should not be confused with the evolution of the safeguards system itself. The system had evolved from one based on safeguards agreements deriving from the Statute to one based on comprehensive safeguards agreements deriving from document INFCIRC/153, but a safeguards agreement was a legal instrument not subject to evolution; if additional undertakings were to be entered into, that called for a protocol or some other form of additional legal instrument acceptable to the parties.

110. The statement in paragraph 6 that in February 1992 the Board had reaffirmed the requirement that the Agency provide assurance regarding the correctness and completeness of nuclear material declarations by States was misleading: that requirement had been affirmed not as a general principle, but in respect of the initial inventories of two specific countries – and on both occasions Brazil had expressed reservations.

They absolutely should “seek” to do so. It’s just that the IAEA does not have the legal authority absent an AP. Else there would be no need for an AP.

This is just like the situation with the police: they have a mandate to stop crime, and should “seek” to stop all and any crime no matter how petty. But the police does not have the legal authority to come into your bedroom at 3am just to make sure you’re not indulging in criminal behavior.

In any case, Dan Joyner can defend himself — see his latest post on this subject:

The IAEA’s authority to seek to verify completeness comes from Article 2 of a comprehensive safeguards agreement, which obligates the IAEA to apply safeguards to all nuclear material in the country. This seems pretty clear.

The Additional Protocol does not alter the basic objective of safeguards nor the basic obligations in articles 1 and 2 of comprehensive safeguards agreements. It is not the source of the IAEA’s authority to pursue completeness. Rather, it is a set of additional tools that enable the IAEA to do so more effectively.

Joyner’s claim in the linked article that the Board’s statement about correctness and completeness is a reference to the Additional Protocol is also false. The Board conclusion on this point explicitly refers to “the safeguards system for implementing comprehensive safeguards agreements.” This was the meeting where the Board endorsed the Agency’s plans under Part 1 of Program 93+2 (measures to strengthen safeguards under existing authority) and provided further guidance on Part 2, which led to the negotiation of the Model Additional Protocol. I note that Joyner conveniently drops a paragraph break in the Board’s decision in a way that appears to link the sentence on the obligation of states with comprehensive safeguards agreement to cooperate in implementing those agreement to the separate paragraph on the proposed new complementary authority.

Both yousaf (above) and Joyner purport to find that the some Board members expressed “reservations” about this claim. This is false in two respects. First, a careful reading of the record indicates that the reservations were about the plans for Part 2, not the conclusions of Part 1. Second, those reservations were addressed in the final version of the Board decision, as amended. This decision was adopted by consensus. Indeed, the text of the decision as adopted by consensus reflects those reservations explicitly, but makes clear that they apply to the Secretariat’s proposal for complementary new safeguards authority. And in the end those reservations were addressed and resolved in the negotiation of the Model Additional Protocol, which also was adopted by consensus.

“Both yousaf (above) and Joyner purport to find that the some Board members expressed “reservations” …”

I never mentioned any reservations: I explained to you the difference between a mandate and a legal authority to carry out such a mandate. If you choose to willfully ignore my explanation that is OK, but don’t put words in my mouth that I never uttered.

If you don’t believe me, feel free to check what the IAEA says. Please copy and save the page so we don’t have to return to this issue again:

Safeguards are based on assessments of the correctness and completeness of a State’s declared nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. Basically, ******* two sets ***** of measures are carried out in accordance with the type of safeguards agreements in force with a State.

One set relates to verifying State reports of ******declared******** nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.

*** Another set **** adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the ********absence of undeclared nuclear material************* and activities in a State.
==========================

Happy to discuss further. But I hope there is no need and we can take the IAEA’s word for it.

shaheen | February 24, 2014

The latest post by anon (February 23) sounds pretty convincing to me and is coherent with my own understanding and recollection of the events of the 1990s. I eagerly await for yousaf and Joyner’s replies, which I’m sure will enlighten us once again ;-)

I also note that Joyner seems pretty isolated in his bizarre interpretation. Most legal experts I know on this matter (individuals or various persuasions, political obediences and nationalities) do not seem to share his view.

irani | February 25, 2014

Anon says that “The IAEA’s authority to seek to verify completeness comes from Article 2 of a comprehensive safeguards agreement, which obligates the IAEA to apply safeguards to all nuclear material in the country” and that “… it is a set of additional tools that enable the IAEA to do so more effectively.”
However, the safeguards agreement spells out the Agency’s “right and obligation to ensure that the safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material”. The problem is that “a set of additional tools” to seek to verify completeness are not “in accordance with the terms of this Agreement”!
It is interesting that the lack of “additional tools” (in view of the Agency, “Additional Protocol”) has made the Agency to report that it is not able to fulfill its obligation regarding implementation of CSA (in view of the Agency, “completeness”) in more than 55 States!
Moreover, anon says “a careful reading of the record indicates that the reservations were about the plans for Part 2, not the conclusions of Part 1.” However, DG reported to GC(GC(40)/17, 23 August 1996) that the concerns were related to Part 1 measures and remained unresolved after March meeting:
“3. A report was presented to the March 1995 meeting of the Board of Governors (GOV/2784) which gave an overview of measures proposed for strengthening the safeguards system, and discussed each measure in terms of its cost, effort, assurance, legal aspects and its interrelations with other measures. The extensive comments made at this meeting resulted in the submission for the Board’s consideration in June 1995 of a further document (GOV/2807) which contained a comprehensive set of strengthening and efficiency measures divided in two parts. Part 1 consisted of measures which could, in the Secretariat’s view, be implemented under existing legal authority and which the Secretariat would proceed to implement. Part 2 consisted of measures which were believed to require complementary authority. The Board of Governors noted the Secretariat’s intention to proceed with Part 1 measures on the understanding that concerns of Member States would be clarified and implementing arrangements elaborated by consultations between the Secretariat and Member States.”

mark | February 25, 2014

Irani,

Two points:

1.) Once again, as anon has already warned some commentators to this post, do not conflate the absense of IAEA legal authority under Part II to imply that there is no legal authority under Part I. If you are referring to “tools” relevant to implementation of Part II, then your comment that they do not conform with the state’s safeguards agreement is a non sequitur.

2.) I take issue with your citation of “reservations” expressed by member states during the negotiation of the Additional Protocol.

The comments from member states you cite, including the lengthy intervention by Brazil, date from Board of Governors deliberations in March and June 1995.

But 1995 was not the end of the story: The negotiation of the AP continued for another two years.

During 1995-1997 these negotiations on the text of the Additional Protocol were conducted to resolve the issues raised by Brazil and other states prior to consensus approval of the Additional Protocol in May, 1997.

Consensus approval of the Additional Protocol in the Board of Governors in 1997 also implies approval by Brazil since it is a permanent member of the board, regardless of any previous “reservations” expressed by that state or others which you refer to.

The narrative you (and some others here on this blog site and elsewhere) present in your comments above will mislead readers to conclude erroneously that consensus approval of the Additional Protocol in 1997 was qualified or limited on the basis of questions and reservations raised by IAEA member states as of June, 1995. That is wrong.

The testimony of the Brazilian “reservations” expressed through June 1995 has routinely been brought forth by other commentators, including on this site, as ammunition to support the unwarranted contention that the AP is not legitimate in the view of IAEA member states. The cumulative record of board deliberations through May 1997 would correct this error for the record.

irani | March 2, 2014

Mark,

Could you please let me know what “tools” the Agency need to attain necessary conclusion in 57 States having CSA, but without Additional Protocol?

Because, we don’t see the required completeness conclusion, as you and IAEA suggest, in the SIR-2012 report that reiterates “for these States, declared nuclear material remained in peaceful activities.”

It is clear that you stress on obligation of the Agency to verify “all” nuclear material in States having CSA, according to CSA literal reading, and at the same time are very loose on obligation of the Agency to implement safeguards “in accordance with the terms of this Agreement”!

This article raises numerous questions. I’m quite keen to hear from readers about this and will approve comment that in my view brings us forward with fresh insight that specifically addresses the topic.

But I’m not going to print any reiterated warmed-over narratives or rhetoric we’ve heard before that’s even remotely off the subject of Fred’s article. So be warned. And I will not respond to any special pleading or inquiries should comments not be approved or posted.

yousaf | February 27, 2014

The sources in the article assert that IAEA did not publish the putative draft report because of political pressure (an issue in itself) — but is it not possible that, even if such a draft report existed, that the Agency did not publish it because the “evidence” stinks?

But, hey why not?

If there is a “P”MD file with dubious things in it, why not a Possible Draft File on Maybe More PMD? what to call it? A PDFMMPMD?

I don’t see how this article adds anything substantial to what we have already been told by Reuters. Yesterday Reuters reported that the IAEA had planned a report including new information and that the IAEA didn’t write it. Today Reuters cites the IAEA as saying that they didn’t write the report. I don’t get it.

Yousaf, “But, hey why not” –why not what?

Since 2004 what the IAEA has chosen to release to the board on PMD and other matters has been subject to internal debate and, yes, discussion with member states. We know that. The U.S. and its allies urged Amano in 2011 to make that information available which appeared in the report to the board meeting in November 2011. It should hardly therefore be a surprise that if there is now additional information on PMD, it would likewise be subject to the same decision making process. It would not be a surprise that the state which provided any such information to the IAEA might press the IAEA to release it to the governors. If you want to speculate that any such information is not reliable, up to you. I don’t know if it is reliable or not, but I am content to withhold my judgment because I (and I presume also you) have so far no real information about this to draw and informed conclusion based on the specifics of this case.

What appears to me to be incontrovertable is that the IAEA in the February 2012 report benchmarked its intention to raise the PMD issues by citing in Paragraph 11 the appropriate language in GOV/2012/50. That’s not a matter of speculation. It is a fact. Its in the report for all to read.

Why is it in there? In my view, that citation records that as of 9/2012 the P5+1 were unanimously resolved that resolution of past issues was “essential and urgent,” and that the IAEA Secretariat would want to underline its view that resolving past issues should not be subject to diplomatic slight of hand.

Whatever the background or reasons are (if indeed there is new PMD information as Reuters suggests) for any deliberation by the IAEA about what the IAEA might or might not have included in a report which in fact the IAEA never wrote, I think it would be fair to conclude that the citation of GOV/2012/50 in the report that the IAEA did write is not a coincidence.

Interesting that Israel came out with a statement urging the IAEA to publish [whatever]. I think this may be the first time they’ve openly weighed into whatever Dahl digs up. That would seem to be the new element in the latest article you link here.

I think Dahl’s anonymous source schtick is getting thin. These sources (this source?) aren’t even “diplomats.” Each one has a tiny bit of information that Dahl then blows up with speculation. It’s hard to make a whole of it (or even follow some of Dahl’s articles) when we don’t know which source is which or how many there are.

yousaf | February 28, 2014

Mark,
well, the new information today does point us to a certain country that is peeved about the lack of publication of the alleged draft report.

Perhaps that same country gave the IAEA the “evidence”.

Perhaps non-NPT states should not be allowed to give the IAEA secret intel?

As for: “but I am content to withhold my judgment because I (and I presume also you) have so far no real information about this to draw and informed conclusion based on the specifics of this case.”

Well, no. There is reason to believe — including your FP article “Intel Inside” — that the AP graphs are among the PMD issues (or hopefully, were).

[....]

I think secret evidence would not stand in any court of law (outside of Somalia, Liberia etc.) so Iran’s stance is perhaps not unfathomable.

[...]

I completely disagree that resolution of past issues is “essential and urgent,” — but even if you hew to such a view, you should accept that Iran may be right when it resolves the issue by saying the evidence presented is forged.

Is Iran supposed to admit to fake evidence?

Is there any reason to think some of the PMD Alleged Studies may not be forged?

I may or may not have been contacted recently by a country, let’s call it country Q. The head of the regulatory authority there asked if it’s okay to build a reprocessing plant within visible range of a safeguarded reactor. I said fine, why not.

He then said that he didn’t intend to declare any material in the reprocessing plant, as he didn’t, for various reasons, want to get the Agency involved. I asked him, “but don’t you think the Agency would ask questions about that, especially given that you have a big neon sign on the building that says ‘reprocessing going on here’”

He answered that he had been seeking legal advice by a few folks active on the ACW. They said that not declaring it would be fine, and that he shouldn’t answer any questions from the IAEA about the repo-plant as the material hasn’t been declared. They also said that it’s nobody’s business to ask questions about the plant, as the Agency is legally bound not to discuss undeclared material. (Country Q doesn’t have a AP in place it turns out). In fact, anyone who questions whether there is undeclared material connected with this installation should be viewed as a dubious warmonger.

He admitted that while his country wouldn’t be in technical compliance with the safeguards agreement, it wouldn’t matter, as no one would ever know. After all, completeness doesn’t fall within the agency’s investigatory remit.

I noted that the Agency had, in fact, asked similar questions of North Korea in the early 1990s. He shrugged and said “what else would you expect from the IAEA since it is a cats-paw of the United States”?

And so we left the discussion. I felt convinced and reassured.

yousaf | February 28, 2014

Yes, we need a much stronger and better NPT and CSAs — I have proposed an NPT 2.0

Here’s the catch: it would likely require serious disarmament in exchange for tighter controls on fuel cycle work.

Is it your opinion that the IAEA was in the wrong when they investigated reprocessing activities in the DPRK, finding their declaration incomplete? Is it also your opinion that the Agency was wrong in analysing the claims relating to an alleged uranium transaction between Iraq and Niger, proving them false?

My feeling is that most of us welcomed the Agency’s role in both instances. But perhaps I’m wrong about that too.

Andreas

yousaf | March 2, 2014

No, my opinion is the IAEA should do whatever they are authorized to under the CSA.

If they want more powers — veering from inspections to investigations — then they can negotiate that with member nations, either one on one or all together.

I’d prefer to have a new NPT that does not encourage the proliferation of dual-use technology.

Is it your opinion that the proliferation of dual-use technology (ca. 1968) is a smart idea still?

Whatever they are authorised to do? With respect, I think you’re avoiding the question. Were they, or were they not, authorised to engage in the acts I highlighted above? If so, can you submit a reference to the DPRK’s or Iraq’s safeguards agreement? And can you also explain why it was okay in those circumstances but not in Iran? What has changed?

If you do not think they were authorised to investigate the events I referred to above, well then you really need to help me out. See, in that case I cannot reconcile your views on what the Agency is permitted to do vis-a-vis Iran with what the Agency was permitted to do vis-a-vis Iraq and the DPRK.

Surely, you would want to advocate uniform and foreseeable implementation?

Or are you of the view here that case-by-case implementation is acceptable in certain circumstances, but not in Iran? It’s fine to hold that opinion, of course, I’m just trying to understand where you’re coming from on this.

On your question regarding dual use technologies – if you subscribe to the basic notion of atoms for peace, which I do, you would need to accept that dual use technologies are being spread. In other words, accepting the notion means accepting the potential that the technology could be misused in the future. Accepting this potential, however, does not mean that you necessarily need to accept misuse when it occurs.

I’ve seen your recommendations for a new non-proliferation and disarmament framework. You’re not alone in putting this forward. Others have too. My personal view is that if you could get stronger regulation on dual use technologies, and a global understanding on SFM production and storage, it would be an effort well worth engaging in.

However, I am also sympathetic with those that say that revising the understanding embedded in the NPT might lead to a worse, rather than a better, deal as a whole. Perhaps you’re willing to take that risk, as your view appears to be that the NPT isn’t fit for purpose, but I feel like it’s a bit like throwing the baby out with the bathwater.

The NPT is not a monolithic agreement. State’s have a different understanding of the treaty today – when it’s nearly universal – than they had in the 1960s, when it was opened for signature. It’s not impossible to change the way in which it’s implemented and understood. Frustrating, perhaps, time consuming, for sure, but not impossible.

yousaf | March 3, 2014

I don’t know what is in country Q’s CSA — if you send a copy I can address the question.

Also has the facility just been built or does it have nuclear material already in it? I am assuming everyone is working with Code 3.1mod.

If nuclear material were being diverted to an undeclared facility that would be a no-no.

As long as nuclear material were accounted for, and there was no weaponization it would be OK modulo pertinent CSA which you have not specified.

So the question is a bit ill-posed.

I think what you may be trying to get at is if it is OK to do what Country Q is doing? It seems not, but absent an AP the IAEA would not have the legal authority to check this out in country Q.

They could therefore ask for special inspections or undertake arbitration per CSA. (Neither of which they did for Iran either btw).

I could give a firmer answer if I knew what was in the CSA, and your question was better-posed, but I would tentatively advise country Q against it as the IAEA may catch them if the IAEA were intelligent enough to use special inspections.

I didn’t ask you to do an analysis of what Country Q can or cannot do. As you may have figured out, that was a bitingly sarcastic characterisation of what happens if one takes your interpretation to the extreme. Sarcasm, a tool so often employed against those who contribute to this blog, isn’t really meant to be answered, is it?

However, if you so desire, and perhaps you do, you can use INFCIRC/153 as a template. You’ll be hard pressed to find a NNWS with deviating terms, so it’s about 99.9% certain that Q will apply those terms. Having just written that, I think you’ve given your views already, so you shouldn’t really bother. I doubt you’ll change your mind.

What I did ask you to do, however, was to submit a reference to Iraq’s and DPRK’s safeguards agreements which explicitly allowed the Agency to do what they did. You have not done so, so allow me to help you out:

The only reference you will find is the same reference that allows for a completeness determination in INFCIRC/153, namely the obligation to submit all SNM to safeguards. Your position is that while that obligation exists, the Agency would be a fault trying to verify this. Fine. My conclusion is hence that if you believe that the Agency had no business investigating the Niger documents, and that they had no business asking the DPRK about an undeclared waste storage site outside the Yongbyon fence.

Yet, they did, and no-one, not even you, have challenged them on this (well, the DPRK did, naturally). In your next article on the matter, can you please highlight that the IAEA was in the wrong exposing, say, the Niger hoax, and that the world would have been better off if they had not done so.

And while you’re doing that, can you also make an argument as to why it’s imperative that Technical Cooperation is abolished? Last time I checked this was an undertaking clearly outside the Agency Statute. Abolishing TC would be consistent with your methodology. It would be a popular proposal to some, believe me.

Safeguards are based on assessments of the correctness and completeness of a State’s declared nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. Basically, ******* two sets ***** of measures are carried out in accordance with the type of safeguards agreements in force with a State.

One set relates to verifying State reports of ******declared******** nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.

*** Another set **** adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the ********absence of undeclared nuclear material************* and activities in a State.
==========================

So yes, absent an AP the Agency does not have unlimited legal authority. Even with an AP its legal authority is still limited. None of this should be difficult to understand.

This is just like the situation with the police: they have a mandate to stop crime, and should “seek” to stop all and any crime no matter how petty. But the police does not have the legal authority to come into your bedroom at 3am just to make sure you’re not indulging in criminal behavior.

Happy to discuss further. But I hope there is no need and we can take the IAEA’s word for it.

The State Evaluation Report (SER) is the basis for drawing safeguards conclusions contained in the Safeguards Implementation Report (SIR). The former is a dynamic document that is updated when new information comes to light, whether by virtue of inspections or information from elsewhere, to include open sources, as well as information provided by Member States. SER information is not necessarily included except by sometimes oblique references in the SIR, and SERs are held closely by the safeguards department (I’m sure almost everything leaks, but I never saw one when I was in Vienna). But my understanding is as follows: There are good and obvious reasons for this firewall: the SER is always a work-in-progress; it helps the IAEA plan the safeguards strategy for a specific country, and also necessarily contains proprietary information deemed important for commercial reasons. It also contains information regarding the safeguards approach used by the Agency for that country, the revelation of which could compromise the effectiveness of safeguards. The SIR is an annual drawing of conclusions at a specific point in time for the previous year, and a sort of parlor game exists both in its preparation (How much to disclose? What information passes the smell test?) and among those who get to read it between the lines trying to figure out what information was left out and why.

So it’s entirely possible, even likely, that PMD matters remain in a ticklish discussion between the Agency and Iran, as has everything else in the safeguards dossier (or SER), ever-changing because of the drip-drip-drip of new information regarding Iran’s activities since at least 2003. Maybe Dahl’s report is not really news. The non-publication of a special report does not necessarily define a situation where the Agency has nothing to inspect. It may simply mean that everything is in flux. I certainly hope so.

Back to “Staying Ahead of the Game.” It underscores many times a fundamental aspect of safeguards, put bluntly, that if you can’t prove to the inspectorate you haven’t done anything wrong, the IAEA can’t prove your compliance with your obligations, whether they derive from a old-style agreement (CSA) or a new and improved one (CSA + AP). According to some views expressed in earlier posts which I do not share, this is not based on some concrete Board decision. But it is the only logical way for safeguards inspectors to operate, is generally accepted by Member States, and it’s what makes the IAEA unique.

One person’s view.

yousaf | March 1, 2014

I just wanted to highlight a wonderful new book by Gudrun Harrer on the IAEA inspections in Iraq, which has relevance vis-a-vis Intel sources and methods on Iran also:

Are some similar “P”MD aka Alleged Studies on Iran of a similar pedigree?

Cyrus | March 4, 2014

In his book, Elbaraei speciically mentions the EBW documents which were planted by the Israelis. When he returned the documents to the Israelis instead of taking them seriously, they took the story to Oliver Kamm at the Times instead, where readers laughed out ould at the claims about the obviously-tampered document. Thats probably why the Israelis called Elbaradei a “desciplable person” and “Iranian agent” in the media when he had left office.